KHVPF Insight

Can An Employer Ask For Doctor’s Note?

Can An Employer Ask For Doctor’s Note?

With so many employment-related laws, leaves can be tricky to navigate with each situation often presenting its own set of challenges. Given the difficulty in assessing a request for leave, employers are often unsure what they can ask for and require when an employee says he is not coming to work or needs an extended leave for medical issues.

Generally speaking, an employer may request a doctor’s note as evidence of the need for an employee’s leave under the Family Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) but each law has its own governing provisions and limitations.

FMLA

The FMLA entitles a qualifying employee up to 12 weeks of unpaid leave each year. Under the FMLA, employers are permitted to request a doctor’s note or medical certification when an employee first requests leave. 29 C.F.R. § 825.305(a). In most cases, the employer should request, either in writing or verbally, that an employee furnish certification at the time the employee gives notice of the need for leave or within five business days thereafter, or, in the case of unforeseen leave, within five business days after the leave commences. 29 C.F.R. § 825.305(b). At the time the employer requests certification, the employer must also advise an employee of the anticipated consequences of an employee’s failure to provide adequate certification. 29 C.F.R. § 825.305(d). The employee must provide the requested certification to the employer within 15 calendar days (or longer if the employer allows the employee more than 15 days) after the employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts. See 29 C.F.R. § 825.305 (a), (b), and (d).

FMLA certification requires much more information than an illegible doctor’s note. Just look at the four-page FMLA certification form that the healthcare provider must fill out. www.dol.gov/sites/dolgov/files/WHD/legacy/files/WH-380-E.pdf.

The certification, e.g., must (1) The name, address, telephone number, and fax number of the health care provider and type of medical practice/specialization; (2) The approximate date on which the serious health condition commenced, and its probable duration; (3) A statement or description of appropriate medical facts regarding the patient’s health condition for which FMLA leave is requested. The medical facts must be sufficient to support the need for leave, and may include information on symptoms, diagnosis, hospitalization, doctor visits, whether medication has been prescribed, any referrals for evaluation or treatment (physical therapy, for example), or any other regimen of continuing treatment;

If the employer determines that a certification is incomplete or insufficient because it (1) lacks the information set forth above or (2) the information provided is vague, ambiguous, or non-responsive, it must state in writing what additional information is necessary to make the certification complete and sufficient. The employer must provide the employee with seven calendar days (unless not practicable under the particular circumstances despite the employee’s diligent good faith efforts) to cure any such deficiency. If the deficiencies specified by the employer are not cured in the, the employer may deny the taking of FMLA leave. 29 C.F.R. § 825.305(c).

ADA

Employers can request medical documentation when an individual makes it known that an accommodation is needed at work. However, the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA (“Guidance”) provides that an employer cannot ask for documentation when (1) both the disability and the need for reasonable accommodation are obvious, or (2) the individual has already provided the employer with sufficient information to substantiate that he has an ADA disability and needs the reasonable accommodation requested. Conversely then, when the disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his or her disability and functional limitations.

So what does reasonable documentation look like? According to the Guidance, reasonable documentation is only the documentation that is needed to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation. Therefore, the amount of documentation required depends upon the situation and how much information is already known about the impairment, functional limitations, and accommodations. Thus, an employer, in response to a request for reasonable accommodation, cannot ask for documentation that is unrelated to determining the existence of a disability and the necessity for an accommodation. In addition, an employer cannot request a person’s complete medical record as that would likely contain information unrelated to the disability at issue and the need for accommodation.

Doctor’s Note as Part of Sick Leave Policy

According to the Guidance, an employer is entitled to know why an employee is requesting sick leave. An employer, therefore, may ask an employee to justify his or her use of sick leave by providing a doctor’s note or other explanation, as long as it has a policy or practice of requiring all employees, with and without disabilities, to do so. See Lee v City of Columbus, 636 F.3d 245 (6th Cir. 2011). The employer, however, must be careful to apply the practice of requiring a doctor’s note consistently to all employees, and should not infringe on anyone’s right to medical privacy. Generally speaking, many employers have a policy of requiring a doctor’s note for absences longer than three days or when suspicious circumstances arise, such as when an employee calls in sick on the same day for which a request for vacation was denied. If an employer does not currently have such a policy, it should consider implementing one.

An employer cannot demand detailed information to be included in the doctor’s note, and the employee reserves the right to keep their medical diagnosis, type of treatment, and the severity of their illnesses confidential. A doctor’s note should validate the worker’s sick leave days at the minimum and should include the date of appointment with the doctor and dates the employee was ill, injured, or unfit for work.

Proof of COVID Vaccination

The EEOC’s Technical Assistance Questions and Answers regarding COVID-19 says that the employer can request information about the employee’s COVID-19 vaccination status. This information must be treated like other medical information under the ADA.

The Assistance states:

K9. Does the ADA prevent an employer from inquiring about or requesting documentation or other confirmation that an employee obtained a COVID-19 vaccination?   (Updated 10/13/21)

No.  When an employer asks employees whether they obtained a COVID-19 vaccination, the employer is not asking the employee a question that is likely to disclose the existence of a disability; there are many reasons an employee may not show documentation or other confirmation of vaccination besides having a disability.  Therefore, requesting documentation or other confirmation of vaccination is not a disability-related inquiry under the ADA, and the ADA’s rules about making such inquiries do not apply.

However, documentation or other confirmation of vaccination provided by the employee to the employer is medical information about the employee and must be kept confidential, as discussed in K.4

Case-by-case

Each request for leave should be assessed according to each individual’s own facts and circumstances. Depending on which statute the leave falls under (or if it falls under the employer’s policy), there are different requirements that must be carefully followed.

Alex Petrik